JUDGMENT I.S. Mathur, J.
1. The appellant Naurangi Lal, along with one Bhagwant, have been convicted under Sections 302/34 and 307/34, I.P.C, by judgment and order dated 15-10-1980 passed by IInd Additional Sessions Judge, Etah. The third accused, Pati Ram son of Bhagwant, was acquitted. The appellants were, however, acquitted for offence under Sections 323 34, I.P.C.
2. Bhagwant filed a separate appeal, being Criminal. Appeal No. 2370 of 1980. It was stated by the learned counsel appearing for the appellant that Bhagwant has died. The report in this regard has been called from the C.J.M. Etah and, in the meanwhile, it was directed that the appeal of Bhagwant be delinked.
3. The deceased Patiram, son of Liladhar, was the real brother of the complainant Mani Ram, Maharaj Singh is the son of the complainant. Accused Pati Ram and Naurangi Lal are real brothers and Bhagwant is their father. The accused abovenamed and the complainant and the deceased were residents of the same village Joga Mai Kalan. According to the prosecution, on 14-10-1979 the appellant, along with other accused, encroached upon the land in possession of Mani Ram by digging foundation and constructing foundation wall. This was objected to by Maharaj Singh and others. The complainant Mani Ram along with the deceased Patiram were working on their 'Rehat' at about 12 noon. They heard the shouts of Maharaj Singh. On hearing the shouts the complainant and the deceased Patiram rushed towards the village Abadi and found that the accused Pati Ram son of Bhagwant and Bhagwant armed with lathis and Naurangi Lal armed with the licensed gun of this brother were quarrelling with the children. The complainant said to them that they have dug up a foundation illegally and on the top of it they are quarrelling. On shouts being raised Chob Singh and other persons came there. The accused attacked the complainant and others with lathis and gun causing injuries to Pati Ram and his son Maharaj Singh. A first information report of this incident was lodged by Mani Ram on 14-10-1979 at 2 p.m. at police station Kotwali, district Etah and a case under Section 307, I.P.C. was registered. Pati Ram, who was alive till then, and Maharaj Singh were sent to the hospital where PW 2 Dr. R.P. Dixit examined them. He found the following injuries on their person:-
Pati Ram
1. Abraded contusion 3 cm. x 3 cm. on the left side front of chest left side 5 cm. above the left nipple and 7 cm. below the left clavicle.
2. Abrasion 3 cm. x 1 cm. on the left side of abdomen 3 cm. below the left lower border of rib.
3. One firearm wound of entry 1 cm. x 1 cm. on the left side of abdomen 7 cm. from the mid line and 7 cm. below the lower border of rib left side. It is cavity deep, probing not done due to surgical reasons.
4. Eight firearm wounds of entry each 1 cm. x 1 cm., probing not done due to surgical reasons, depth could not be ascertained bleeding profusely. It is in the left groin area in an area of 15 cm. x 10 cm.
5. Abrasion 3 cm. x 3 cm. on the outer side of left thigh upper part in the G.T. of femur area. Injuries Nos. 1, 2 and 5 were simple and appear to have been caused by friction with some hard object while injuries Nos. 3 and 4 were kept under observation and were caused by firearm. The injuries were fresh in duration.
Maharaj Singh
1. One firearm wound of entry 1 cm. x 1 cm. on the right side of abdomen 2 cm. from mid line and 2 cm. above umbilicus. It is cavity deep, no bleeding present probing not done due to surgical reasons.
2. On firearm of entry 1 cm. x 1 cm. on the lower border of rib, cavity deep, probing not done due to surgical reasons, no bleeding present. Advised X-ray.
3. One firearm wound of entry, 1 cm. x 1 cm. x muscle deep on the right side front and middle part. Margins inverted and lacerated. No bleeding present, direction backward and horizontal. Advised X-ray.
Injury No. 3 was simple while injuries Nos. 1 and 2 were kept under observation. X-ray was advised in respect of all the three injuries which were caused by fire arm for confirmation of pellets.
4. Pati Ram died at 2.35 p.m. on 14-10-1979 in Etah Hospital and information of the same was sent to police, vide Ex. Ka 4.
5. On post mortem examination PW 3 Dr. L. S. Raizada found the following ante mortem injuries on the person of the deceased Pati Ram :-
1. Abraded contusion x 3 cm. x 3 cm. on the left chest front 6 cm. above the left nipple.
2. Abrasion 3 cm. x 1 cm. transverse on the left side abdomen 3 cm. below the lower rib margin.
On internal examination, there was echymosis in the walls as mentioned in injury No. 3, The peritoneum was lacerated below injury No. 3. and two pints of clotted blood was present in the cavity. The measentry was grossly lacerated and echymosed in the small intestines from which one pellet was recovered and sealed. The large intestines were 1/4 full with faecal matter and loop of the large intestines was lacerated in the descending colour. The bladder was grossly lacerated and echemosed and free and clotted blood was present in the pelvic cavity. One pellet was recovered from the same. There was fracture of pelvis left illiac bone had comminuted fracture. Two pellets were recovered from that injury. One pellet was recovered from the left gelted region in the muscles.
According to the doctor the stomach contained 6 ozs. of semi digested food and faecal matter was present in the large intestine. In all five pellets were recovered from the body of the deceased Pati Ram. In the opinion of the doctor death was due to shock and haemorrhage on account of injuries Nos. 3 and 4.
6. After completing the investigation the Investigating Officer submitted a charge-sheet against all the aforementioned three accused.
7. We have heard the learned counsel for the appellant and the learned Additional Govt. Advocate and in our opinion, there is no force in this appeal. The motive of the murder has been clearly established by the prosecution. The prosecution witnesses have stated that the accused had encroached upon a piece of land which was in the possession of the complainant. The appellant had dug a foundation and were, on the date of the incident, putting layers of bricks therein. It is further stated by the prosecution witnesses that, on being asked to desist from such encroachment, the appellant fired at Pati Ram and his nephew Maharaj Singh. The investigating Officer, who visited the site, found that foundation had been dug at the place. The layers of bricks had been put in and some bricks were also lying on the site. It appears from the statements of the prosecution witnesses that the appellant did not relish this interference by Maharaj Singh and after fetching the gun from the house, he fired at Pati Ram who was coming towards the site on hearing the shouts of Maharaj Singh and also hit Maharaj Singh who, by then, had managed to get his father's licensed gun and had come out in the open space.
8. So as far the actual incident is concerned the prosecution has examined four eye witnesses, namely, PW 1 Mani Ram, PW 5 Maharaj Singh, PW 6 Chob Singh and PW 7 Mohar Singh. All these witnesses made substantially consistent in regard to the incident and place of occurrence. According to PW 1 Mani Ram he was working at the 'Rabat' along with his brother Pati Ram deceased, on 14-10-1979 at about 12 noon when he heard the shouts of Maharaj Singh and other children. On hearing these shouts he along with Pati Ram rushed to the place from where the shouts were coming. When he reached the field of Madho Singh the appellant came with a gun and fired from the place where the Abadi of Suraj Pal, Chak road and field of Madho Singh meet and that Naurangi Lal fired twice hitting Pati Ram as a result of which he fell down. This statement is corroborated by PW 6 Chob Singh and PW 7 Mohar Singh. The Investigating Officer also found blood stains at that place where Pati Ram fell down. There appears to be no sufficient reason for doubting the statements made by these witnesses.
9. Learned counsel for the appellant has, however, taken us through what he called important circumstances against the statements of the prosecution witnesses and the version of the prosecution. He had challenged the testimony of PW 1 Mani Ram on the ground that he is related to the deceased and is thereby an interested witness and according to the learned counsel, it was most unnatural that PW 1 Mani Ram did not even touch the deceased and had no blood stains on him. The statements of PW 6 Chob Singh and PW 7 Mohar Singh have been challenged on the ground that the appellant had allegedly filed a suit against Chob Singh in 1970 and the wives of Mohar Singh and Chob Singh are sisters. The further grounds for challenging the veracity of the statements of these witnesses were that Chob Singh (PW 6) could not see the occurrence from the place he is alleged to have seen it and both Chob Singh (PW 6) and Mohar Singh (PW 7) are chance witnesses.
10. The statements of the eye witnesses have also been challenged on the ground of alleged contradiction with the version given in the first information report.
11. We are unable to accept any of these submissions, so far as PW 1 Mani Ram and PW 5 Maharaj Singh are concerned, it is no doubt true that they are closely related to the deceased, PW 1 Mani Ram being brother of the deceased and PW 5 Maharaj Singh being nephew and for that reason they may be interested witnesses. However, the law is well settled that the testimony of a partisan or interested witness cannot be discarded merely on that account. The testimony of such a witness cannot be equated with that of a tainted witness. In Sarwan Singh v. State of Punjab, 1976 Supreme Court Cases (Cri) 646 : (1976 Cri LJ 1757) Hon'ble Surpeme Court has observed as follows in para 10 of the report :-
"More over, it is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
12. In State of Punjab v. Wasan Singh, the Surpeme Court has observed :-
"It is true that both these witnesses are related to the deceased and, as such, are interested witnesses, but their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witnesses. Mere relationship with the deceased was not a good ground for discarding their testimony when, as we have already held their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part and role assigned to each of the accused."
13. In Appa v. State of Gujarat, Hon'ble Supreme Court has observed :-
"Experience reminds us that civilised people are generally insensitive when crime is committed even in their presence. They withdraw both from the victim and vigilants. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they must not involve themselves. The kind of apathy of general public is, indeed, unfortunate but it is every where, whether in village life, towns or cities. One cannot ignore the handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
14. These decisions were noticed by this Court in Criminal Appeal No. 2579 of 1979 Dalsigar alias Dalloo v. State of Uttar Pradesh, decided on 19-1-1995 and the Division Bench, comprising both of us, has observed as follows in regard to the legal position:-
"Thus the correct legal position is that the testimony of relative witnesses or the witnesses who are otherwise interested cannot be equated with the testimony of a tainted witness. All that is required, by way of prudence and not by way of law, is that the testimony of such witnesses must be examined with little more care and caution. If on such scrutiny, it is found that there is nugget of truth in their statements, there will be no illegality or even impropriety in accepting their testimony. So far as relative witnesses are concerned, unless there are strong grounds to disbelieve their testimony, they are normally more natural and reliable witnesses as they would not like to spare the real assailants and involve innocent persons just because of enmity. Further, no adverse inference need to be drawn merely because of the failure of the prosecution to examine independent witness. If on scrutiny of the statements of interested witnesses, with care and caution, they are found to be truthful, failure to examine independent witnesses will not be material at all.
15. We reiterate the view taken in Dalsigar's case and held that the testimony of an interested witness cannot be equated to the testimony of a tained witness. It cannot be discarded merely on that ground. The only requirement is that the testimony of such a witness must be examined with more care and caution.
16. We proceed to do so. We have already indicated above that the eye witnesses namely PW 1 Mani Ram PW 6 Chob Singh and PW 7 Mohar Singh have made substantially consistent statement in regard to the incident and place of occurrence. PW 5, Maharaj Singh is not an eye witness in respect of deceased Patiram and in this regard he has merely stated that he saw his dead body lying in the open field. The incident took place in an open field in broad day light at about 12 noon. The Investigating Officer found blood at the place where Patiram was shot. Merely because the blood stained earth was not sent for chemical examination, the prosecution version cannot be said to be doubtful (See Ramesh Chandra v. State, . The medical evidence, namely, the post mortem report of deceased Patiram and injury report of Maharaj Singh supports the prosecution version.
17. The factum of the injury to PW 5 Maharaj Singh is an added guarantee to the veracity of his statement, so far as it goes i.e. in so far as it relates to his being shot and injured by the appellant and his finding Patiram lying in the field.
18. It is also not possible to accept the submission of the learned counsel for the appellant that the statement of PW 1 Mani Ram be disbelieved because there were no blood stains on his clothes. The submission of the learned counsel was that if Mani Ram was really present, it should have been his natural conduct to touch the injured Patiram and if he had done so he would have got blood stains on his clothes. Reliance has been placed by the learned counsel on the observations made by Hon'ble Surpeme Court in L/NK. Meharaj Singh v. State of U.P., 1994(31) ACC 437 (SC) : (1994 AIR SCW 2210). On the other hand learned Addl. Government Advocate referred to another decision of Hon'ble Supreme Court in Rai Sahab v. The State of Haryana, 1993 (1) SVLR (Cri) 102 in support of his submission that absence of blood stains on the clothes of eye witnesses cannot lead to the conclusion that the witnesses were not present. In L/NK. Meharaj Singh's case (supra) Smt. Kamlesh, the widow of the deceased claimed that she was present with her husband at the time of occurrence. But she had no blood stains on her clothes. The evidence disclosed that Smt. Kamlesh did not try to protect her husband or save her husband from the blows that were given to him. It was noticed that if she had done so she would have got blood stains on her clothes. Hon'ble Supreme Court in the facts and circumstances of that particular case found this conduct to be unnatural and held that the presence of Smt. Kamlesh was doubtful.
19. On the other hand, in the case relied upon by the learned Addl. Government Advocate namely Raisaheb v. State of Haryana (supra) the two witnesses were wife and son of the deceased. It was contended before Hon'ble Supreme Court that absence of blood on their clothes indicated that they were not present. Hon'ble Supreme Court rejected this contention and observed that PW 5, when questioned in this context, categorically stated that she remained in the bus raising cries and did not fall upon her husband to, rescue him, held that this is a very minor thing.
20. A perusal of these two decisions of the Hon'ble Supreme Court indicates that, perhaps, no hard and fast rule can be laid down in this context and it will depend on a particular situation and facts and circumstances prevailing at that particular time. In this context we may also usefully refer to the following observations of Hon'ble Supreme Court in Rana Pratap v. State of Haryana, :-
"Every person who witnesses a murder reacts in his own way, some stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing, some start shouting for help, others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim even going to the extent of counteracting the assilants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unreliable and unimaginative way."
In this connection the following observations made by the Hon'ble Supreme Court in Appa Bhai v. State of Gujarat, may also be noticed :-
"The Court must, however, bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness of a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
21. The correct legal position in this regard would thus appear to be that merely because there is no blood stain on the clothes of a witness, who is closely related to the deceased or injured, may not by itself be conclusive of the fact regarding his presence or. otherwise. This will depend on the facts and circumstances of each case, keeping in view the fact that the witnesses to a crime do not always react in the same way. In the present case it is no doubt true that PW 1 Mani Rani is alleged to have been coming with Patiram when he was shot and Mani Ram did not have any blood stains on his clothes, but it is in evidence that he was coming behind Patiram and was a few paces behind. He is not as closely related to Patiram as the witnesses in the two aforesaid decisions of the Supreme Court were. Further no questions have been put to this witness in cross examination as to why he did not react in the manner suggested by the learned counsel for the appellant in this Court. It is possible that if such a question had been asked, he might have given some plausible explanation in that regard. It is settled law that no circumstances can be read adversly to a witness unless that circumstance is put to him and his explanation is obtained (See State of U.P. v. Anil Singh, 1988 Allahabad Criminal Rulings 621 : (1989 Cri LJ 88) (SC) since, as noted by Hon'ble Surpeme Court in the two decisions, namely, Rana Pratap (supra) and Appa Bhai (supra) there is no presumption about any set rule of conduct or reaction on such occasions, it was necessary that this circumstance should have been put to the witness and his explanation obtained, if the defence thought that a witness should have reacted in a particular manner and did not react that way. As this has not been done in the present case, the circumstance referred to by the learned counsel cannot be of any help to the appellant.
22. We are also unable to accept the submission of the learned counsel for the appellant that PW 6 Chob Singh could not see this occurrence from the place he alleged to have seen it. We have carefully gone through the evidence and we do not find anything therein to substantiate this assertion. This witness PW 7 Moher Singh cannot also be said to be interested chance witnesses as suggested daring arguments. There is merely a vague suggestion to him that a suit was filed by the appellant against his brother. He has denied this suggestion and there is nothing on record to indicate that any such suit was filed or this witness appeared in that case in the Court. They have also given plausible explanations for their presence at home on that day.
23. It is also difficult to accept the submission of the learned counsel for the appellant that there are material contracdicions between the version given in the first information report and the statements of the witnesses in the Court. The alleged material contradictions indicated by the learned counsel are that in the first information report the case set up is that on hearing the shouts of Maharaj Singh the complainant Mani Ram and the deceased Patiram who were working on the 'Rahat' came there and found that the accused were abusing their children and on being asked to desist from such an action they attacked them with gun and lathis, but in the statement in Court it was stated by the witnesses that there was some altercation between Maharaj Singh and appellant Naurangi Lal. It has been stated by PW 5 Maharaj Singh in this connection that he objected to Naurangi Lal encroaching over his land and Naurangi Lal hit him with a Kanni 'and then he hit Naurangi Lal with a stone as a result of which the other accused Bhagwant and Pati Ram exhorted Naurangi Lal to bring the gun and kill him. It was further pointed out by the learned counsel that in his statement in Court PW 5 Maharaj Singh has stated that after the aforesaid altercation he ran away but heard two shots, and cries of the villagers that Patiram has been killed and that when he reached the field Naurangi Lal fired at him also.
24. It is settled law that the first information report need not contain the minutest details of the crime, it is enough if broad picture presented by the prosecution was revealed in the first information report. No exception can be taken against a report if it contains the broad features of the crime (see P. Narayana v. The State of A.P., 1975 Supreme Court Cases (Criminal) 427: (1975 Cri LJ 1062). In the present case the first information report gives abroad spectrum of the incident and narrates the cause of the incident. It is true that the fact relating to Naurangi Lal and Maharaj Singh hitting each other with 'Kanni' and stone respectively or Manajraj Singh running away from there and later being hit by shot fired by Naurangi Lal in the field, have not been mentioned in the first information report in such detail. However, considering the entire facts, we are of the view that these are merely the details of the incident and failure of the complainant to mention them in the first information report cannot be said to be fatal to the case of the prosecution. It is true that, in the first information report, it has been mentioned that the accused attacked with lathis and gun but there are no injuries attributable to lathi. It has been explained in the evidence that the accused did attempt to assault with lathi also but before they could hit the deceased or the injured with lathis, Naurangi Lal had already shot them. We agree with the learned Addl. Government Advocate that attacking does not necessarily mean hitting with lathis.
25. The learned counsel for the appellant challenged the reliability of the first information report on other grounds also. It was contended by him that the first information report has been ante-times. In support of his submission he submitted that the copy of the chik report was not given to the complainant, the first information report was not lodged in the nearer police station, namely, Nidhauli Kala, and that the crime number has not been given on the inquest report. We are unable to accept this submission either. As the learned Sessions Judge has noted when the complainant reached the police station the injured were in critical condition. Under this circumstances it was quite natural for him to try to save their lives and rush them to the hospital rather than wait for the copy of the report P.W. 4, S. I. Vidya Ram Chaturvedi who prepared inquest report has deposed that he had proceeded to the place where the dead body of Patiram was lying alone with necessary papers which statement must be taken to mean that he must have received the copy of the chik report. No question was put to the witness as to whether this chik report was with him or not. Therefore, it cannot be said that the chik report was not with Sri Chaturvedi when he sent the papers to the doctor for post mortem and if that report was not sent to the Medical Officer no adverse inference can be drawn.
26. It is true that the police station Nidhuli Kalan was nearer to the place of incident while police station Kotwali where the report was actually lodged was at a distance. However, we agree with the learned Addl. Government Advocate that there is sufficient justification on record for doing so. As noticed above, both Patiram and Maharaj Singh were in critical condition. Accordingly, it was quite natural to take them to the hospital in Etah and file report in P. S. Kotwali, Etah rather than to wait at Naidhauli Kalan for filing the report.
27. It is true that no crime numbner has been mentioned on the inquest report. This omission is obviously because of the fact that the matter related to police station Nidhuli Kalan. P.W. 8 Head Moharrir Bani Singh has explained that no crime number was given on the first information report lodged at P. S. Kotwali because the matter related to police station Nidhauli Kalan. It has not been shown by reference to any rules or orders that even in this circumstance it I was necessary for the police station Kotwaji to mention the crime number. The inquest report in the case was prepared by P.W. 4, S.I. Vidya Ram Chaturvedi who was posted in police station Kotwali, Etah. Since no crime number was given in the first information report lodged at P. S. Kotwali it was quite obvious that no crime number could have been mentioned by P.W. 4, S.I. Vidya Ram Chaturvedi. It further appears from the statement of P.W. 4, S. I. Vidya Ram Chaturvedi that no explanation was asked from him in regard to this matter. It is possible that if such an explanation would have been asked P.W. 4, S. I. Vidya Ram Chaturvedi might have explained the circumstance. In view of these facts we are unable to consider this circumstances adverse to the prosecution case.
28. In this connection it may also be observed that no question would appear to have been put to P.W. 8, Head Moharrir Bani Singh, P. S. Kotwali also in regard to the alleged ante-timing of the report. It is settled law that no circumstance can be read adverse to the witness or the case of the prosecution unless that is put to the concerned witness and his explanation is obtained. In absence of any such suggestion to P.W. 8, H. M. Bani Singh it is not possible to consider this submission in favour of the appellant for this reason also.
29. Learned counsel for the appellant then sought to challenge the prosecution version on the ground that the co-accused Pati Ram has been acquitted by the learned Sessions Judge. The contention of the learned counsel was that if the statements of the prosecution witnesses have not been accepted in respect of Pati Ram they cannot also be accepted in respect of the other accused. Reliance has been placed by the learned counsel on Prem Singh v. State of Punjab, and B. N. Singh v. State of Gujarat, 1990 (27) (SC) ACC 209: (1990 Cri LJ 1601). We are unable to accept this submission either. Falsus in Uno Falsus in Omnibus' has not been accepted as a sound rule in India. In Sohrab v. State of Madhya Pradesh, Hon'ble Supreme Court has observed at page 2020 :-
"This Court has held that Falsus in Uno Falsus in Omnibus is not the sound rule for the reason that hardly one comes across a witness whose statement does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to salient feature of the case after cautious scrutiny cannot be considered."
30. In Deep Chand v. State of Haryana, 1969 (3) Supreme Court cases 890 referred to by the learned counsel for the complainant, the Supreme Court referred to this doctrine 'Falsus in Uno Falsus in Omnibus' and observed :-
"Mr. Chari conceded that Maxim (Falsus in Uno Falsus in Omnibus) has not been found to be sound rule in the conditions in this country, (see Umar Ahir v. State of Bihar, and Ambika Sbaran Singh v. Mahant Mahadeva Nand Giri), and therefore the Court's duty in cases where a witness has been found to have given unreliable evidence in regard to certain particulars is to scrutinise the rest of this evidence with care and caution. If that part of evidence takes away the very substratum of his case, the Court cannot disbelieve the substratum and reconstruct a story of its own out of the rest."
In Deep Chand's case the evidence of the witnesses and, accordingly, the case of the prosecution regarding one of the accused Mange Ram to the effect that he had also assaulted the deceased was not found to be true by the trial Court and the High Court. The Supreme Court rejected the contention that this circumstance should persuade the Court to disbelieve the version of the witnesses and of the prosecution against the other accused and observed :-
"That part of the evidence obviously, therefore, was untrue. But if the maxim falsus in Uno falsus in Omnibus were not to be applied there would still be the evidence relating to the other persons who were the assailants of the deceased. There still remained the duty of the Court to scrutinise with caution and care the evidence with regard to those others. The substratum of the prosecution case, therefore, could not be said to have fallen with the evidence as against Manga Ram. A conviction based on the rest of the evidence as against the rest could be justified if that evidence was found on a careful and cautious consideration of it to be reliable. That is precisely what has been done in this case."
The Supreme Court agreed with the trial Court and the High Court that the statements of witnesses and the prosecution version as against the other accused could still be relied upon and dismissed the appeal.
31. In Hoshiar Singh v. State of Punjab, four of the nine accused were acquitted. On a consideration of the "totality of circumstances", Hon'ble Supreme Court held that 'the Maxim Falsus in Uno Falsus in Omnibus' is not attracted. Conviction of five accused was upheld (also see J. Bharat Singh v. State of Gujarat, 1994 SCC (Cri) 1193.
32. In Annaporan Dutt v. State of U.P., 1992 SVLR (CR) 256: (1993 Cri LJ 490) relied upon by the learned Additional Government Advocate, also the same principle has been reiterated. In that case the main eye witness admitted that he had falsely implicated seven accused persons. However, Hon'ble Supreme Court upheld the finding of the High Court that there was some overdoing on the part of the prosecution in falsely implicating some of the accused persons but merely on that account the evidence of the eye witnesses so far as the complicity of the appellant is concerned cannot be discarded. The conviction and sentence was upheld by the Hon'ble Surpeme court.
33. It must accordingly be held that since the doctrine 'Falsus in Uno Falsus in Omnibus', is not applicable in India, the case of the prosecution cannot be thrown out merely because the witnesses or some of them have not been truthful in regard to some of the accused or part of the prosecution. In such a case the only requirement of law will be that the testimony of these witnesses in regard to the remaining version or the cases against the other accused will have to be considered by the Court with more care and caution. The Court will have to determine whether the statements of the prosecution witnesses or the prosecution version in regard to the accused who have been found to be not involved or against whom the case appears to be doubtful could be separated from the cases against rest of the accused and as to whether the statements and the version in regard to the rest of accused could withstand more cautious and careful scrutiny. In other words, where truth and falsehood could be separated and Court finds the case against the other accused to be convincingly proved beyond reasonable doubt, there would be no illegality in convicting the other accused or upholding their conviction. If, on the other hand, on a consideration of the substratum of the prosecution case, the truth and falsehood are found to be so inextricably mixed up as to be incapable of being separated the entire case of the prosecution may have to be rejected.
34. Nothing to the contrary would appear to have been relied upon in the decisions relied upon by the learned counsel for the appellant. In Prem Singh v. State of Punjab, it is not clear from the facts given as to whether the role of all the accused was similar or the case of the persons who were acquitted was in-extricably mixed up and was incapable of separation, Considering the law laid down by Hon'ble Supreme Court in the other cases noted above it is reasonable to infer that the Hon'ble Supreme Court found in this case that the case of the appellant could not be separated from the others. It will further appear that failure of the prosecution to examine some independent witnesses, who were available, also weighed with Hon'ble Supreme Court in coming to the conclusion that it will not be safe to convict the appellant on the basis of the evidence produced and that he was entitled to benefit of doubt. It will thus appear that the decision in this case turned out on the particular facts and circumstances of the case.
35. In the other case, namely, B.N. Singh v. State of Gujarat, (SC) 1990 (27) ACC 209 : (1990 Cri LJ 1601) also it would appear that the decision of Hon'ble Supreme Court turns out on the particular facts of that case. Out of the six accused three, namely, accused Nos. 2, 3 and 6 were alleged to have caught hold of the deceased and the other accused then stabbed him with knives. The participation of accused Nos. 2, 3, and 6 was held to be doubtful by the Courts below while the other accused were convicted. Hon'ble Supreme Court held that the case of prosecution in respect of the other accused so convicted must also be held to be doubtful for the added reason that all the witnesses are highly interested and their evidence is suspicious.
36. It will appear from the facts of the above case that the case of all the accused was inextricably connected and was incapable of being separated. The witnesses were all interested and on the principle of scrutiny with care and caution the prosecution case could not be sustained.
37. In the present case, the case of the appellant is quite distinguishable from the case of the accused who has been acquitted. The role assigned to the appellant is that he fired at and injured both Patiram and Maharaj Singh while the role assigned to the accused Pati Ram, who has been acquitted was that of trying to attack with lathi. The witnesses admitted during cross-examination that no lathi injury was caused as the deceased and the injured had already been hit by the bullet fired by the appellant. The post mortem report and the injury reports clearly indicate that the death of Patiram has been caused by bullet injury and Maharaj Singh also has bullet injury. The initial quarrel resulting in this incident has also taken place with the appellant and Maharaj Singh. Though the two of the witnesses, namely, Maharaj Singh and Mani Ram could be said to be interested as they are related to the deceased Patiram their testimony fully withstands close scrutiny, the witnesses Chob Singh (PW 6) and Mohar Singh (PW 7) are quite independent. As already indicated. Mohar Singh is an injured witness and insofar as his testimony goes, his injury is an added guarantee to the veracity of his statement. We are clearly of the opinion that in the facts of the present case, the case of the appellant could clearly be extricated from the case of other accused. It cannot be said to be inextricably mixed up with the case of the other accused. On a close and cautious scrutiny of the evidence we find the prosecution version to be quite truthful so far as this appellant is concerned. For all these reasons we reject the submission of the learned counsel for the appellant that the case against the appellant must be held to be doubtful in view of the fact that one of the accused namely, Pati Ram son of Bhagwant was acquitted by the trial Court.
38. The learned counsel for the appellant lastly contended that the prosecution case is inconsistent with the medical evidence. It was contended by him that, according to the prosecution witnesses, no injury was caused with lathi but the deceased Patiram had two abraded contusions and one abrasion and this, according to him, has remained un-explained. We do not think So. Dr. R. P. Dixit (PW 2) who had examined the deceased Patiram, has explained that these injuries could be caused if the person fell down. He has also stated that injuries could also result if the injured person were to writhe in pain after falling on the ground. Two shots were fired at Patiram and it is quite natural that he would have been writhing in pain after falling down and as result of the same he would have got these injuries. It cannot, therefore, be said that medical evidence is inconsistent with the oral testimony.
39. To sum up, therefore, the prosecution has succeeded in proving the motive for the crime. There was a quarrel between appellant Naurangi Lal and Maharaj Singh (PW 5) regarding Naurangi Lal having encroached upon the land of Mani Ram. Prosecution witnesses, namely, Mani Ram (PW 1) Chob Singh (PW 6) and Mohar Singh (PW 7) have given consistent statements to the effect that Naurangi Lal fired at Patiram deceased and thereafter at Maharaj Singh causing injuries to them as a result of which Pati Ram died. Chob Singh and Mohar Singh are quite independent witnesses. Maharaj Singh has also supported the prosecution case insofar as injury caused to him is concerned. The factum of injury to Maharaj Singh gives an added guarantee to the truthfulness of his statement. Medical evidence fully supports the prosecution version. The first information report cannot be said to be doubtful for the reasons alleged by the learned counsel for the appellant. It gives the broad spectrum of the incident and failure to mention some minute details cannot make it doubtful. The statements of the prosecution witnesses Mani Ram (PW 1) and Maharaj Singh (PW 5) cannot be discarded on the ground of their being interested witnesses. The only legal requirement is that their statements will have to be considered with more care and caution. On such scrutiny their statements would appear to be quite convincing and reliable. In the facts and circumstances of the present case the acquittal of one of the accused, namely Pati Ram son of Bhagwant, cannot lead to the inference that the prosecution version against the appellant is also doubtful. In such a case the only legal requirement is that the prosecution version will have to be looked into with more care and caution. On such scrutiny also we do not find any material infirmity in the prosecution version. Accordingly, we are of the opinion that this appeal has to be dismissed.
40. The appeal is accordingly dismissed. In case the appellant Naurangi Lal has not been arrested, in pursuance of the warrant issued by this Court earlier, he shall surrender and shall be taken into custody by the Chief Judicial Magistrate, Etah, to serve out sentence awarded to him by the learned Sessions Judge. His bail bonds and surety bonds stand cancelled.